I.

Revised Penal Code (RPC) and related Special Laws

A. Book 1 (Articles 1-99, RPC) [Exclude the provisions on civil liability]

1. Fundamental principles

a) Definition of Criminal Law

Criminal law is that branch of municipal law which defines crimes, treats of their
nature and provides for their punishment. It is that branch of public substantive law which defines
offenses and prescribes their penalties. It is substantive because it defines the state’s right to inflict
punishment and the liability of the offenders. It is public law because it deals with the relation of the
individual with the state.

(i) Mala in Se and Mala Prohibita

Violations of the Revised Penal Code are referred to as malum in se,

which literally means, that the act is inherently evil or bad or per se
wrongful. On the other hand, violations of special laws are generally
referred to as malum prohibitum. Note, however, that not all violations
of special laws are mala prohibita. While intentional felonies are always
mala in se, it does not follow that prohibited acts done in violation of
special laws are always mala prohibita. Even if the crime is punished
under a special law, if the act punished is one which is inherently wrong,
the same is malum in se, and, therefore, good faith and the lack of
criminal intent is a valid defense; unless it is the product of criminal
negligence or culpa. Likewise when the special laws requires that the
punished act be committed knowingly and willfully, criminal intent is
required to be proved before criminal liability may arise. When the act
penalized is not inherently wrong, it is wrong only because a law
punishes the same. For example, Presidential Decree No. 532 punishes
piracy in Philippine waters and the special law punishing brigandage in
the highways. These acts are inherently wrong and although they are
punished under special law, the acts themselves are mala in se; thus,
good faith or lack of criminal intent is a defense.

Test to determine if violation of special law is malum prohibitum or

malum in se Analyze the violation: Is it wrong because there is a law
prohibiting it or punishing it as such? If you remove the law, will the act
still be wrong? If the wording of the law punishing the crime uses the
word “willfully”, then malice must be proven. Where malice is a factor,
good faith is a defense. In violation of special law, the act constituting
 the crime is a prohibited act. Therefore culpa is not a basis of liability,
unless the special law punishes an omission. When given a problem,
take note if the crime is a violation of the Revised Penal Code or a
special law.

(ii) Construction of penal laws

b) Scope of application and characteristics of Philippine criminal law

(i) Generality

Generality of criminal law means that the criminal law of the country
governs all persons within the country regardless of their race, belief, sex, or creed.
However, it is subject to certain exceptions brought about by international agreement.
Ambassadors, chiefs of states and other diplomatic officials are immune from the
application of penal laws when they are in the country where they are assigned. Note
that consuls are not diplomatic officers. This includes consul-general, vice-consul or any
consul in a foreign country, who are therefore, not immune to the operation or
application of the penal law of the country where they are assigned. Consuls are subject
to the penal laws of the country where they are assigned. It has no reference to
territory. Whenever you are asked to explain this, it does not include territory. It refers
to persons that may be governed by the penal law.

(iii) Territoriality
Territoriality means that the penal laws of the country have force and
effect only within its territory. It cannot penalize crimes committed
outside the same. This is subject to certain exceptions brought about by
international agreements and practice. The territory of the country is
not limited to the land where its sovereignty resides but includes also its
maritime and interior waters as well as its atmosphere. Terrestrial
jurisdiction is the jurisdiction exercised over land. Fluvial jurisdiction is
the jurisdiction exercised over maritime and interior waters. Aerial
jurisdiction is the jurisdiction exercised over the atmosphere.

The Archipelagic Rule All bodies of water comprising the maritime zone
and interior waters abounding different islands comprising the
Philippine Archipelago are part of the Philippine territory regardless of
their breadth, depth, width or dimension. On the fluvial jurisdiction
there is presently a departure from the accepted International Law Rule,
because the Philippines adopted the Archipelagic Rule. In the
International Law Rule, when a strait within a country has a width of
more than 6 miles, the center lane in excess of the 3 miles on both sides
is considered international waters.
(iv) Prospectivity
This is also called irretrospectivity. Acts or omissions will only be subject
to a penal law if they are committed after a penal law had already taken
effect. Vice-versa, this act or omission which has been committed
before the effectivity of a penal law could not be penalized by such
penal law because penal laws operate only prospectively.

In some textbooks, an exemption is said to exist when the penal law is

favorable to the offender, in which case it would have retroactive
application; provided that the offender is not a habitual delinquent and
there is no provision in the law against its retroactive application. The
exception where a penal law may be given retroactive application is
true only with a repealing law. If it is an original penal law, that
exception can never operate. What is contemplated by the exception is
that there is an original law and there is a repealing law repealing the
original law. It is the repealing law that may be given retroactive
application to those who violated the original law, if the repealing penal
law is more favorable to the offender who violated the original law. If
there is only one penal law, it can never be given retroactive effect.
(a) Effects of repeal/amendment of penal law
In some commentaries, there are references as to whether the
repeal is express or implied. What affects the criminal liability of an
offender is not whether a penal law is expressly or impliedly
repealed; it is whether it is absolutely or totally repealed, or
relatively or partially repealed. Total or absolute, or partial or
relative repeal. -- As to the effect of repeal of penal law to the
liability of offender, qualify your answer by saying whether the
repeal is absolute or total or whether the repeal is partial or relative
only. A repeal is absolute or total when the crime punished under
the repealed law has been decriminalized by the repeal. Because of
the repeal, the act or omission which used to be a crime is no longer
a crime. An example is Republic Act No. 7363, which decriminalized
subversion. A repeal is partial or relative when the crime punished
under the repealed law continues to be a crime inspite of the
repeal. This means that the repeal merely modified the conditions
affecting the crime under the repealed law. The modification may
be prejudicial or beneficial to the offender. Hence, the following
rule: Consequences if repeal of penal law is total or absolute (1) If a
case is pending in court involving the violation of the repealed law,
the same shall be dismissed, even though the accused may be a
habitual delinquent. This is so because all persons accused of a
crime are presumed innocent until they are convicted by final
judgment. Therefore, the accused shall be acquitted. (2) If a case is
already decided and the accused is already serving sentence by final
judgment, if the convict is not a habitual delinquent, then he will be
entitled to a release unless there is a reservation clause in the penal
law that it will not apply to those serving sentence at the time of the
repeal. But if there is no reservation, those who are not habitual
delinquents even if they are already serving their sentence will
receive the benefit of the repealing law. They are entitled to
release. This does not mean that if they are not released, they are
free to escape. If they escape, they commit the crime of evasion of
sentence, even if there is no more legal basis to hold them in the
penitentiary. This is so because prisoners are accountabilities of the
government; they are not supposed to step out simply because
their sentence has already been, or that the law under which they
are sentenced has been declared null and void. If they are not
discharged from confinement, a petition for habeas corpus should
be filed to test the legality of their continued confinement in jail. If
the convict, on the other hand, is a habitual delinquent, he will
continue serving the sentence in spite of the fact that the law under
which he was convicted has already been absolutely repealed. This
is so because penal laws should be given retroactive application to
favor only those who are not habitual delinquents.

Consequences if repeal of penal law is partial or relative (1) If a case

is pending in court involving the violation of the repealed law, and
the repealing law is more favorable to the accused, it shall be the
one applied to him. So whether he is a habitual delinquent or not, if
the case is still pending in court, the repealing law will be the one to
apply unless there is a saving clause in the repealing law that it shall
not apply to pending causes of action. (2) If a case is already decided
and the accused is already serving sentence by final judgment, even
if the repealing law is partial or relative, the crime still remains to be
a crime. Those who are not habitual delinquents will benefit on the
effect of that repeal, so that if the repeal is more lenient to them, it
will be the repealing law that will henceforth apply to them. For
example, under the original law, the penalty is six years. Under the
repealing law, it is four years. Those convicted under the original
law will be subjected to the four-year penalty. This retroactive
application will not be possible if there is a saving clause that
provides that it should not be given retroactive effect. Under Article
22, even if the offender is already convicted and serving sentence, a
law which is beneficial shall be applied to him unless he is a habitual
delinquent in accordance with Rule 5 of Article 62. Express or
implied repeal. – Express or implied repeal refers to the manner the
repeal is done. Express repeal takes place when a subsequent law
contains a provision that such law repeals an earlier enactment. For
example, in Republic Act No. 6425 (The Dangerous Drugs Act of
1972), there is an express provision of repeal of Title V of the
Revised Penal Code. Implied repeals are not favored. It requires a
competent court to declare an implied repeal. An implied repeal will
take place when there is a law on a particular subject matter and a
subsequent law is passed also on the same subject matter but is
inconsistent with the first law, such that the two laws cannot stand
together, one of the two laws must give way. It is the earlier that
will give way to the later law because the later law expresses the
recent legislative sentiment. So you can have an implied repeal
when there are two inconsistent laws. When the earlier law does
not expressly provide that it is repealing an earlier law, what has
taken place here is implied repeal. If the two laws can be reconciled,
the court shall always try to avoid an implied repeal. For example,
under Article 9, light felonies are those infractions of the law for the
commission of which a penalty of arresto mayor or a fine not
exceeding P200.00 or both is provided. On the other hand, under
Article 26, a fine whether imposed as a single or an alternative
penalty, if it exceeds P6,000.00 but is not less than P 200.00, is
considered a correctional penalty. These two articles appear to be
inconsistent. So to harmonize them, the Supreme Court ruled that if
the issue involves the prescription of the crime, that felony will be
considered a light felony and, therefore, prescribes within two
months. But if the issue involves prescription of the penalty, the fine
of P200.00 will be considered correctional and it will prescribe
within 10 years. Clearly, the court avoided the collision between the
two articles. Consequences if repeal of penal law is express or
implied (1) If a penal law is impliedly repealed, the subsequent
repeal of the repealing law will revive the original law. So the act or
omission which was punished as a crime under the original law will
be revived and the same shall again be crimes although during the
implied repeal they may not be punishable. (2) If the repeal is
express, the repeal of the repealing law will not revive the first law,
so the act or omission will no longer be penalized. These effects of
repeal do not apply to self-repealing laws or those which have
automatic termination. An example is the Rent Control Law which is
revived by Congress every two years. When there is a repeal, the
repealing law expresses the legislative intention to do away with
 such law, and, therefore, implies a condonation of the punishment.
Such legislative intention does not exist in a self-terminating law
because there was no repeal at all.

c) Constitutional limitations on the power of Congress to enact penal laws

(i) Equal protection

(ii) Due process

(iii) Non-imposition of cruel and unusual punishment or excessive fines

(a) Act Prohibiting the Imposition of Death Penalty in the Philippines

(R.A. No. 9346)

(iv) Bill of attainder

(v) Ex post facto law

2. Felonies

a) Classifications of felonies

1) According to the manner of their commission Under Article 3, they are classified as,
intentional felonies or those committed with deliberate intent; and culpable felonies or those
resulting from negligence, reckless imprudence, lack of foresight or lack of skill.

(2) According to the stages of their execution Under Article 6., felonies are classified as
attempted felony when the offender commences the commission of a felony directly by overt
acts, and does not perform all the acts of execution which should produce the felony by reason
of some cause or accident other than his own spontaneous desistance; frustrated felony when
the offender commences the commission of a felony as a consequence but which would
produce the felony as a consequence but which nevertheless do not produce the felony by
reason of causes independent of the perpetrator; and, consummated felony when all the
elements necessary for its execution are present.

(3) According to their gravity Under Article 9, felonies are classified as grave felonies or
those to which attaches the capital punishment or penalties which in any of their periods are
afflictive; less grave felonies or those to which the law punishes with penalties which in their
maximum period was correccional; and light felonies or those infractions of law for the
commission of which the penalty is arresto menor.

b) Elements of criminal liability

 c) Impossible crime

An impossible crime is an act which would be an offense against person

or property were it not for the inherent impossibility of its accomplishment
or on account of the employment of inadequate or ineffectual means.
Modified concept of impossible crime: In a way, the concept of impossible crime
has been modified by the decision of the Supreme Court in the case of Intod v. CA, et al., 215 SCRA 52. In
this case, four culprits, all armed with firearms and with intent to kill, went to the intended victim’s
house and after having pinpointed the latter’s bedroom, all four fired at and riddled said room with
bullets, thinking that the intended victim was already there as it was about 10:00 in the evening. It so
happened that the intended victim did not come home on the evening and so was not in her bedroom at
that time. Eventually the culprits were prosecuted and convicted by the trial court for attempted
murder. The Court of Appeals affirmed the judgment but the Supreme Court modified the same and
held the petitioner liable only for the so-called impossible crime. As a result, petitioner-accused was
sentenced to imprisonment of only six months of arresto mayor for the felonious act he committed with
intent to kill: this despite the destruction done to the intended victim’s house. Somehow, the decision
depreciated the seriousness of the act committed, considering the lawlessness by which the culprits
carried out the intended crime, and so some members of the bench and bar spoke out against the
soundness of the ruling. Some asked questions: Was it really the impossibility of accomplishing the
killing that brought about its non-accomplishment? Was it not purely accidental that the intended victim
did not come home that evening and, thus, unknown to the culprits, she was not in her bedroom at the
time it was shot and riddled with bullets? Suppose, instead of using firearms, the culprits set fire on the
intended victim’s house, believing she was there when in fact she was not, would the criminal liability be
for an impossible crime? Until the Intod case, the prevailing attitude was that the provision of the
Revised Penal Code on impossible crime would only apply when the wrongful act, which would have
constituted a crime against persons or property, could not and did not constitute another felony.
Otherwise, if such act constituted any other felony although different from what the offender intended,
the criminal liability should be for such other felony and not for an impossible crime. The attitude was so
because Article 4 of the Code provides two situations where criminal liability shall be incurred, to wit:
Art 4. Criminal liability – Criminal liability shall be incurred: 1. By any person committing a felony (delito)
although the wrongful act be different from that which he intended. 2. By any person performing an act
which would be an offense against persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual means. Paragraph 1
refers to a situation where the wrongful act done constituted a felony although it may be different from
what he intended. Paragraph 2 refers to a situation where the wrongful act done did not constitute any
felony, but because the act would have given rise to a crime against persons or against property, the
same is penalized to repress criminal tendencies to curtail their frequency. Because criminal liability for
impossible crime presupposes that no felony resulted from the wrongful act done, the penalty is fixed at
arresto mayor or a fine from P200.00 to P500.00, depending on the “social danger and degree of
criminality shown by the offender” (Article 59), regardless of whether the wrongful act was an
impossible crime against persons or against property. There is no logic in applying paragraph 2 of Article
4 to a situation governed by paragraph 1 of the same Article, that is, where a felony resulted. Otherwise,
a redundancy and duplicity would be perpetrated. In the Intod case, the wrongful acts of the culprits
caused destruction to the house of the intended victim; this felonious act negates the idea of an
impossible crime. But whether we agree or not, the Supreme Court has spoken, we have to respect its
ruling.

d) Stages of execution
 The classification of stages of a felony in Article 6 are true only to crimes under
the Revised Penal Code. This does not apply to crimes punished under special laws. But even
certain crimes which are punished under the Revised Penal Code do not admit of these stages.
The purpose of classifying penalties is to bring about a proportionate penalty and equitable
punishment. The penalties are graduated according to their degree of severity. The stages may
not apply to all kinds of felonies. There are felonies which do not admit of division.

Formal crimes are crimes which are consummated in one instance. For example, in oral
defamation, there is no attempted oral defamation or frustrated oral defamation; it is always in
the consummated stage.

So also, in illegal exaction under Article 213 is a crime committed when a public officer
who is authorized to collect taxes, licenses or impose for the government, shall demand an
amount bigger than or different from what the law authorizes him to collect. Under sub-
paragraph a of Article 213 on Illegal exaction, the law uses the word “demanding”. Mere
demanding of an amount different from what the law authorizes him to collect will already
consummate a crime, whether the taxpayer pays the amount being demanded or not. Payment
of the amount being demanded is not essential to the consummation of the crime. The
difference between the attempted stage and the frustrated stage lies on whether the offender
has performed all the acts of execution for the accomplishment of a felony. Literally, under the
article, if the offender has performed all the acts of execution which should produce the felony
as a consequence but the felony was not realized, then the crime is already in the frustrated
stage. If the offender has not yet performed all the acts of execution – there is yet something to
be performed – but he was not able to perform all the acts of execution due to some cause or
accident other than his own spontaneous desistance, then you have an attempted felony. You
will notice that the felony begins when the offender performs an overt act. Not any act will mark
the beginning of a felony, and therefore, if the act so far being done does not begin a felony,
criminal liability correspondingly does not begin. In criminal law, there is such a thing as
preparatory act. These acts do not give rise to criminal liability.

Desistance on the part of the offender negates criminal liability in the attempted stage.
Desistance is true only in the attempted stage of the felony. If under the definition of the felony,
the act done is already in the frustrated stage, no amount of desistance will negate criminal
liability. The spontaneous desistance of the offender negates only the attempted stage but not
necessarily all criminal liability. Even though there was desistance on the part of the offender, if
the desistance was made when acts done by him already resulted to a felony, that offender will
still be criminally liable for the felony brought about his act. What is negated is only the
attempted stage, but there may be other felony constituting his act.

e) Conspiracy and proposal

Two ways for conspiracy to exist:

 (1) There is an agreement.
(2) The participants acted in concert or simultaneously which is indicative
of a meeting of the minds towards a common criminal goal or criminal
objective. When several offenders act in a synchronized, coordinated
manner, the fact that their acts complimented each other is indicative
of the meeting of the minds. There is an implied agreement.
Two kinds of conspiracy:
(1) Conspiracy as a crime; and
(2) Conspiracy as a manner of incurring criminal liability

When conspiracy itself is a crime, no overt act is necessary to bring about the
criminal liability. The mere conspiracy is the crime itself. This is only true when
the law expressly punishes the mere conspiracy; otherwise, the conspiracy does
not bring about the commission of the crime because conspiracy is not an overt
act but a mere preparatory act. Treason, rebellion, sedition, and coup d’etat are
the only crimes where the conspiracy and proposal to commit to them are
punishable.

f) Multiple offenders (differences, rules, effects)

(i) Recidivism

In recidivism, the emphasis is on the fact that the offender was

previously convicted by final judgement of a felony and subsequently
found guilty of another felony embraced in the same title of the Revised
Penal Code. The law considers this aggravating when a person has been
committing felonies embraced in the same title because the implication
is that he is specializing on such kind of crime and the law wants to
prevent any specialization. Hence, ordinarily, when a person commits a
crime under different titles, no aggravating circumstance is present. It is
important that the conviction which came earlier must refer to the
crime committed earlier than the subsequent conviction.

(ii) (ii) Habituality (Reiteracion)

This has nothing to do with the classification of the felonies. In
reiteracion, the offender has already tasted the bitterness of the
punishment. This is the philosophy on which the circumstance becomes
aggravating.
It is necessary in order that there be reiteracion that the offender has
already served out the penalty. If the offender had not yet served out
his penalty, forget about reiteracion. That means he has not yet tasted
the bitterness of life but if he had already served out the penalty, the
law expects that since he has already tasted punishment, he will more
 or less refrain from committing crimes again. That is why if the offender
committed a subsequent felony which carries with it a penalty lighter
than what he had served, reiteracion is not aggravating because the law
considers that somehow, this fellow was corrected because instead of
committing a serious crime, he committed a lesser one. If he committed
another lesser one, then he becomes a repeater.
So, in reiteracion, the penalty attached to the crime subsequently
committed should be higher or at least equal to the penalty that he has
already served. If that is the situation, that means that the offender was
never reformed by the fact that he already served the penalty imposed
on him on the first conviction. However, if he commits a felony carrying
a lighter penalty; subsequently, the law considers that somehow he has
been reformed but if he, again commits another felony which carries a
lighter penalty, then he becomes a repeater because that means he has
not yet reformed.
You will only consider the penalty in reiteracion if there is already a
second conviction. When there is a third conviction, you disregard
whatever penalty for the subsequent crimes committed. Even if the
penalty for the subsequent crimes committed are lighter than the ones
already served, since there are already two of them subsequently, the
offender is already a repeater.
However, if there is only a second conviction, pay attention to the
penalty attached to the crime which was committed for the second
crime. That is why it is said that reiteracion is not always aggravating.
This is so because if the penalty attached to the felony subsequently
committed is not equal or higher than the penalty already served, even
if literally, the offender is a repeater, repetition is not aggravating.
(iii) (iii) Quasi-Recidivism
This is found in Article 160. The offender must already be convicted by
final judgement and therefore to have served the penalty already, but
even at this stage, he committed a felony before beginning to serve
sentence or while serving sentence.
(iv) (iv) Habitual Delinquency
We have to consider the crimes in it and take note of the titles
of crimes in the Revised Penal Code. If the offender had committed and
was convicted of each of the crimes under each category so that no two
crimes fall under the same title of the Revised Penal Code, you have a
situation where the offender is a habitual delinquent but not a recidivist
because no two crimes fall under the same title of the Code.
If the first conviction is for serious physical injuries or less
serious physical injuries and the second conviction is for robbery, theft
or estafa and the third is for falsification, then the moment the habitual
delinquent is on his fourth conviction already, you cannot avoid that he
is a habitual delinquent and at the same time a recidivist because at
least, the fourth time will have to fall under any of the three categories.
When the offender is a recidivist and at the same time a
habitual delinquent, the penalty for the crime for which he will be
convicted will be increased to the maximum period unless offset by a
mitigatingcircumstance. After determining the correct penalty for the
last crime committed, an added penalty will be imposed in accordance
with Article 62.
Habitual delinquency, being a special or specific aggravating
circumstance must be alleged in the information. If it is not alleged in
the information and in the course of the trial, the prosecution tried to
prove that the offender is a habitual delinquent over the objection of
the accused, the court has no jurisdiction to consider the offender a
habitual delinquent. Even if the accused is in fact a habitual delinquent
but it is not alleged in the information, the prosecution when
introducing evidence was objected to, the court cannot admit the
evidence presented to prove habitual delinquency over the objection of
the accused.
On the other hand, recidivism is a generic aggravating
circumstance. It need not be alleged in the information. Thus, even if
recidivism is not alleged in the information, if proven during trial, the
court can appreciate the same. If the prosecution tried to prove
recidivism and the defense objected, the objection should be overruled.
The reason is recidivism is a generic aggravating circumstance only. As
such, it does not have to be alleged in the information because even if
not alleged, if proven during trial, the trial court can appreciate it.
Right now, the present rule is that it can be appreciated even if
not alleged in the information. This is the correct view because
recidivism is a generic aggravating circumstance. The reason why
habitual delinquency cannot be appreciated unless alleged in the
information is because recidivism has nothing to do with the crime
committed. Habitual delinquency refers to prior conviction and
therefore this must be brought in the information before the court can
acquire jurisdiction over this matter.
Generally, the procedure you know that when the prosecutor
alleges habitual delinquency, it must specify the crimes committed, the
dates when they were committed, the court which tried the case, the
date when the accused was convicted or discharged. If these are not
alleged, the information is defective.
However, in a relatively recent ruling of the Supreme Court, it
was held that even though the details of habitual delinquency was not
 set forth in the information, as long as there is an allegation there that
the accused is a habitual delinquent, that is enough to confer
jurisdiction upon the court to consider habitual delinquency. In the
absence of the details set forth in the information, the accused has the
right to avail of the so-called bill of particulars. Even in a criminal case,
the accused may file a motion for bill of particulars. If the accused fails
to file such, he is deemed to have waived the required particulars and
so the court can admit evidence of the habitual delinquency, even
though over and above the objection of the defense.

g) Continuing crimes

h) Complex crimes and special complex crimes

3. Circumstances affecting criminal liability

a) Justifying circumstances

Since the justifying circumstances are in the nature of defensive acts, there
must be always unlawful aggression. The reasonableness of the means employed depends on
the gravity of the aggression. If the unlawful aggressor was killed, this can only be justified if it
was done to save the life of the person defending or the person being defended. The equation is
“life was taken to save life.”

Self Defense - In justifying circumstances, the most important is self-defense. When this
is given in the bar, it is the element of unlawful aggression that is in issue. Never confuse
unlawful aggression with provocation. Mere provocation is not enough.

Defense of property rights - This can only be invoked if the life and limb of the person
making the defense is also the subject of unlawful aggression. Life cannot be equal to property.

Defense of stranger - If the person being defended is already a second cousin, you do
not invoke defense of relative anymore. It will be defense of stranger. This is vital because if the
person making the defense acted out or revenge, resentment or some evil motive in killing the
aggressor, he cannot invoke the justifying circumstance if the relative defended is already a
stranger in the eyes of the law. On the other hand, if the relative defended is still within the
coverage of defense of relative, even though he acted out of some evil motive, it would still
apply. It is enough that there was unlawful aggression against the relative defended, and that
the person defending did not contribute to the unlawful aggression.

Fulfillment of duty - In the justifying circumstance of a person having acted out of

fulfillment of a duty and the lawful exercise of a right or office, there are only two conditions:

(1) The felony was committed while the offender was in the fulfillment of a duty or in
the lawful exercise of a right or office; and
 (2) The resulting felony is the unavoidable consequence of the due fulfillment of the
duty or the lawful exercise of the right or office.

Invariably, when you are given a problem on this premise, and the first condition is
present, but the second is not because the offender acted with culpa, the offender will be
entitled to a privelege mitigating circumstance. This is what you call incomplete justification of
fulfillment of duty or incomplete justification of exercise of a right. In that case, the penalty
would be reduced by one or two degrees.

In People v. Oanis and Callanta, the accused Chief of Police and the constabulary soldier
were sent out to arrest a certain Balagtas, supposedly a notorious bandit. There was an order to
kill Balagtas if he would resist. The accused arrived at the house of a dancer who was supposedly
the girlfriend of Balagtas. When they were there, they saw a certain person who resembled
Balagtas in all his bodily appearance sleeping on a bamboo bed but facing the other direction.
The accused, without going around the house, started firing at the man. They found out later on
that the man was not really Balagtas. They tried to invoke the justifying circumstance of having
acted in fulfillment of a duty.

The second requisite is absent because they acted with negligence. There was nothing
that prevented them from looking around the house and looking at the face of the fellow who
was sleeping. There could not be any danger on their life and limb. Hence, they were held guilty
of the crime of murder because the fellow was killed when he was sleeping and totally
defenseless. However, the Supreme Court granted them the benefit of incomplete justification
of fulfillment of duty and the penalty was reduced by one or two degrees.

Do not confuse fulfillment of a duty with self-defense.

(i) Anti-Violence Against Women and Their Children Act of 2004 (R.A. No.
9262)

(a) Battered woman syndrome

b) Exempting circumstances

In exempting circumstances, the reason for the exemption lies on the

involuntariness of the act – one or some of the ingredients of voluntariness such as criminal
intent, intelligence, or freedom of action on the part of the offender is missing. In case it is a
culpable felony, there is absence of freedom of action or intelligence, or absence of negligence,
imprudence, lack of foresight or lack of skill.

Imbecility and insanity - There is complete absence of intelligence. Imbecile has an IQ

of 7. The intellectual deficiency is permanent. There is no lucid interval unlike in insanity.

The insanity that is exempting is limited only to mental aberration or disease of the
mind and must completely impair the intelligence of the accused. Under common law countries,
emotional or spiritual insanity are exempting circumstances unlike in this jurisdiction because
the Revised Administrative Code, as defined is limited to mental aberration of the mind. This
was the ruling in People v. Dungo.

In People v. Rafanan, decided on November 21, 1991, the following are the two tests for
exemption on grounds of insanity:

(1) The test of cognition, or whether the accused acted with complete deprivation of
intelligence in committing said crime; and

(2) The test of volition, or whether the accused acted in total deprivation of freedom of
will.

Schizoprenia (dementia praecox) can only be considered a mitigating circumstance

because it does not completely deprive the offender of consciousness of his acts.

Minority - In exempting circumstances, the most important issue is how the minority of
the offender affected his criminal liability. It seems that the view of many is that when the
offender is a youthful offender, he must necessarily be confined in a reformatory. This is wrong.
A youthful offender can only be confined in a reformatory upon order of the court. Under the
amendment to Presidential Decree No. 603, Presidential Decree No. 1179 requires that before a
youthful offender may be given the benefit if a suspension of sentence, there must be an
application filed with the court which should pronounce sentence. Note that the commitment of
the offender in a reformatory is just a consequence of the suspension of the sentence. If the
sentence is not suspended, there is no commitment in a reformatory. The commitment is in a
penitentiary, since suspension of sentence requires certain conditions:

(1) The crime committed should not be punishable by reclusion perpetua or death
penalty;

(2) The offender should not have been given the benefit of a suspended sentence
before. This means he is a first timer;

(3) He must be below 18 years old because a youthful offender is one who is below 18.

Note that the age of majority has been reduced to 18. There is no more bracket where
the offender is a minor yet no longer entitled to a mitigating circumstance. An offender below
18 is always entitled to a mitigating or exempting circumstance.

How does the minority of the offender affect his criminal liability?

(1) If the offender is within the bracket of nine years old exactly or less, he is exempt
from criminal liability but not from civil liability. This type of offenders are absolutely exempt.
Even if the offender nine years or below acted with discernment, this should not be taken
against him because in this age bracket, the exemption is absolute
 (2) If over nine but below 15, a distinction has to be made whether the offender acted
with or without discernment. The burden is upon the prosecution to prove that the offender
acted with discernment. It is not for the minor to prove that he acted without discernment. All
that the minor has to show is that he is within the age bracket. If the prosecution would want to
pin criminal liability on him, it has to prove that the crime was committed with discernment.
Here, if the offender was exempt from criminal liability because the prosecution was not able to
prove that the offender acted with discernment, he is only civilly liable but he will be committed
to the surveillance of his parents who will be required to report to the court periodically on the
progress or development of the offender.

If the offender is proven to have acted with discernment, this is where the court may
give him the benefit of a suspended sentence. He may be given the benefit of a suspended
sentence under the conditions mentioned earlier and only if he would file an application
therefor. Suspension of sentence is not automatic. If the youthful offender has filed an
application therefor.

(3) If at the time the judgment is to be promulgated he is already above 18, he cannot
avail of a suspended sentence. The reason is because if the sentence were to be suspended, he
would be committed in a reformatory. Since he cannot be committed to a reformatory anymore
because he is not less than 18 years old, he would have to be committed to a penitentiary. That
means promulgation of the sentence shall not be suspended. If the sentence should not be
suspended, although the minor may be qualified, the court will promulgate the sentence but the
minor shall be entitled to the reduction of the penalty by at least two degrees.

When the offender is over nine but below 15, the penalty to be imposed is discretionary
on the court, but lowered by at least two degrees. It may be lowered by three or four degrees,
depending upon whether the court deems best for the interest of the offender. The limitation
that it should be lowered by at least two degrees is just a limitation on the power of the court to
reduce the penalty. It cannot be less than two degrees.

(4) If the offender is 15 years old and above but below 18, there is no exemption
anymore but he is also given the benefit of a suspended sentence under the conditions stated
earlier and if at the time the sentence is promulgated, he is not 18 years old or over yet. If the
sentence is promulgated, the court will impose a penalty one degree lower. This time it is fixed.
It is to be imposed one degree lower and in the proper periods subject to the rules in Article 64.

Damnum absque injuria - Under Article 12, paragraph 4, the offender is exempt not
only from criminal but also from civil liability. This paragraph embodies the Latin maxim
“damnum absque injuria”.

Compulsion of irresistible force and under the impulse of an uncontrollable fear

The offender must be totally deprived of freedom. If the offender has still freedom of
choice, whether to act or not, even if force was employed on him or even if he is suffering from
uncontrollable fear, he is not exempt from criminal liability because he is still possessed with
voluntariness. In exempting circumstances, the offender must act without voluntariness.

In a situation where the offender would otherwise be exempt, but the requisites for
exemption are not all present, the offender is still entitled to a mitigating circumstance of
incomplete exemption under paragraph 1 of Article 13. Apply the rule if majority of the
requisites to exempt from criminal liability are present. The offender shall be given the benefit
of privelege mitigating circumstances. That means that the penalty prescribed of the crime
committed shall be reduced by one or two degrees in accordance with Article 69 of the Revised
Penal Code. If less than a majority of the requisites for exemption are present, the offender shall
be given only the benefit of ordinary mitigating circumstances. That means the penalty shall be
reduced to the minimum period of the prescribed penalty, unless the mitigating circumstance is
offset by an aggravating circumstance.

(i) Juvenile Justice and Welfare Act of 2006 (R.A. No. 9344); also refer to Child
and Youth Welfare Code (P.D. 603, as amended)

(a) Definition of child in conflict with the law

(b) Minimum age of criminal responsibility

(c) Determination of age

(d) Exemption from criminal liability

(e) Treatment of child below age of responsibility

(f) Status offenses under Sec. 57 of R.A. No. 9344

(g) Offenses not applicable to children under Sec. 58 of R.A. No. 9344

c) Mitigating circumstances

Distinctions between ordinary mitigating circumstances and privileged

mitigating circumstances

(1) As to the nature of the circumstances - Ordinary mitigating circumstances can be

offset by aggravating circumstances. Privilege mitigating circumstance can never be offset by
any aggravating circumstance.

(2) As to effect - Ordinary mitigating circumstances, if not offset, will operate to reduce
the penalty to the minimum period, provided the penalty is a divisible one. Privilege mitigating
circumstances operate to reduce the penalty by one or two degrees, depending upon what the
law provides.

You can easily detect whether the circumstance which mitigates the liability of the
offender is privilege or not, that is, if the penalty is reduced by degree. If the penalty is lowered
by one or two degrees, it is privilege; therefore, even if there is an aggravating circumstance, do
not compensate because that would be violating the rules.

The circumstances under Article 13 are generally ordinary mitigating, except in

paragraph 1, where it is privilege, Article 69 would apply. So also, paragraph 2, in cases where
the offender is below 18 years old, such an offender if criminally liable is entitled to the lowering
of penalty by one degree. But if over nine but under 15, he is entitled to a discretionary penalty
of at least two degrees lower. When there is a lowering of penalties by degrees, it is a privilege.
It cannot be offset by an aggravating circumstance

. Although the bulk of the circumstances in Article 13 are ordinary mitigating

circumstances, yet, when the crime committed is punishable by a divisible penalty, two or more
of this ordinary mitigating circumstances shall have the effect of a privilege mitigating
circumstances if there is no aggravating circumstance at all.

Correlate Article 13 with Articles 63 and 64. Article 13 is meaningless without knowing
the rules of imposing the penalties under Articles 63 and 64.

In bar problems, when you are given indeterminate sentences, these articles are very
important. When the circumstance which mitigates criminal liability is privileged, you give effect
to it above all considerations. In other words, before you go into any circumstance, lower first
the penalty to the proper degree. That is precisely why this circumstance is considered
privileged. It takes preference over all other circumstances.

Praeter intentionem - The common circumstance given in the bar of praeter

intentionem, under paragraph 3, means that there must be a notable disproportion between
the means employed by the offender compared to that of the resulting felony. If the resulting
felony could be expected from the means employed, this circumstance does not avail. This
circumstance does not apply when the crime results from criminal negligence or culpa. When
the crime is the product of reckless imprudence or simple negligence, mitigating circumstances
does not apply. This is one of the three instances where the offender has performed a felony
different from that which he intended. Therefore, this is the product of intentional felony, not a
culpable one.

Sufficient threat or provocation - This is mitigating only if the crime was committed on
the very person who made the threat or provocation. The common set-up given in a bar
problem is that of provocation was given by somebody. The person provoked cannot retaliate
against him; thus, the person provoked retaliated on a younger brother or on an elder father.
Although in fact, there is sufficient provocation, it is not mitigating because the one who gives
the provocation is not the one against whom the crime was committed.

Vindication of a grave offense - The word “offense” should not be taken as a crime. It is
enough if what was imputed or what was done was wrong. In considering whether the wrong is
a grave one upon the person who committed the crime, his age, education and social status will
be considered.

Here, in vindication of a grave offense, the vindication need not be done by the person
upon whom the grave offense was committed. So, unlike in sufficient threat or provocation
where the crime should be inflicted upon the very person who made the threat or provocation,
here, it need not be the same person who committed the grave offense or who was offended by
the wrong done by the offended party.

The word “immediate” here does not carry the same meaning as that under paragraph
4. The word “immediate” here is an erroneous Spanish translation because the Spanish word is
“proxima” and not “immediatementa.” Therefore, it is enough that the offender committed the
crime with the grave offense done to him, his spouse, his ascendant or descendant or to his
brother or sister, whether natural, adopted or legitimate and that is the proximate cause of the
commission of the crime.

Passion or obfuscation - This stands on the premise or proposition that the offender is
suffering from a diminished self control because of the passion or obfuscation. The same is true
with the circumstances under paragraphs 4 and 5. So, there is a ruling to the effect that if the
offender is given the benefit of paragraph 4, he cannot be given the benefit of paragraph 5 or 6,
or vice-versa. Only one of the three mitigating circumstances should be given in favor of the
offender.

However, in one case, one of the mitigating circumstances under paragraphs 4, 5 and 6
stands or arises from a set of facts, and another mitigating circumstance arises from another set
of facts. Since they are predicated on different set of facts, they may be appreciated together,
although they arose from one and the same case. Hence, the prohibition against considering all
these mitigating circumstances together and not as one applies only if they would be taken on
the basis of the same set of facts.

If the case involves a series of facts, then you can predicate any one of these
circumstances on one fact and the other on another fact and so on.

The passion must be legitimate. As a rule, it cannot be based on common law

relationship because common law relationships are illicit. However, consider whether passion or
obfuscation is generated by common law relationship or by some other human consideration.

In a case where the relationship between the accused and the woman he was living with
was one of common law, he came home and surprised his common law wife having sexual
intercourse with a friend. This infuriated him. He killed the friend and he claimed passion or
obfuscation. The trial court denied his claim because the relationship was a common law one.

On review, the accused was given the benefit of the circumstances and the basis of
considering passion or obfuscation in favor of the accused was the act of the common law wife
in committing adultery right from the conjugal bed. Whether or not they are married, any man
who discovers that infidelity was committed on the very bed provided by him to the woman
would naturally be subjected to obfuscation.

When a married person surprised his better half in the act of sexual intercourse with
another, he gets the benefit of Article 247. However, that requisite which in the first place, the
offender must have surprised his/her spouse actually committing sexual intercourse should be
present. If the surprising was done not in the actual act of sexual intercourse but before or after
it, then Article 247 does not apply.

Although this is the ruling, still, the accused will be given the benefit of sufficient
provocation if the intercourse was done in his dwelling. If this act was done somewhere else and
the accused kills the paramour or the spouse, this may be considered as mitigation of a grave
offense to him or otherwise as a situation sufficient to create passion or obfuscation. Therefore,
when a married man upon coming home, surprises his wife who was nude and lying with
another man who was also nude, Article 247 does not apply. If he kills them, vindication of a
grave offense will be mitigating in favor of the offender.

Voluntary surrender - The essence of voluntary surrender requires that the offender,
after having committed the crime, had evaded the law enforcers and the law enforcers do not
know of his whereabouts. In short, he continues to elude arrest. If, under this circumstance, the
offender would come out in the open and he gives himself up, his act of doing so will be
considered as indicative of repentance and he also saves the government the time and the
expense of looking for him.

As a general rule, if after committing the crime, the offender did not flee and he went
with the responding law enforcers meekly, voluntary surrender is not applicable.

However, there is a ruling that if after committing the crime, the offender did not flee
and instead waited for the law enforcers to arrive and he surrendered the weapon he used in
killing the victim, the ruling was that voluntary surrender is mitigating. In this case, the offender
had the opportunity to go into hiding, the fact that he did not flee is not voluntary surrender.

However, if he comes out from hiding because he is seriously ill and he went to get
medical treatment, the surrender is not considered as indicative of remorse or repentance. The
surrender here is only done out of convenience to save his own self. Hence, it is not mitigating.

Even if the offender may have gone into hiding, if the law enforcers had already known
where he is hiding and it is just a matter of time before he is flushed out of that place, then even
if the law enforcers do not know exactly where he was hiding and he would come out, this is not
voluntary surrender.

Whether or not a warrant of arrest had been issued against the offender is immaterial
and irrelevant. The criterion is whether or not the offender had gone into hiding or had the
opportunity to go into hiding and the law enforcers do not know of his whereabouts. If he would
give up, his act of surrendering under such circumstance indicates that he is willing to accept the
consequences of the wrong he has done and also thereby saves the government the effort, the
time and the expenses to be incurred in looking for him.

Where the offender went to the municipal building not to own responsibility for the
killing, such fact is not tantamount to voluntary surrender as a mitigating circumstance.
Although he admitted his participation in the killing, he tried to avoid responsibility by claiming
self-defense which however he was not able to prove. People v. Mindac, decided December 14,
1992.

Surrender to be considered voluntary and thus mitigating, must be spontaneous,

demonstrating an intent to submit himself unconditionally to the person in authority or his
agent in authority, because (1) he acknowledges his guilt (2) he wishes to save the government
the trouble and expenses of searching and capturing him. Where the reason for the surrender of
the accused was to insure his safety, his arrest by policemen pursuing him being inevitable, the
surrender is not spontaneous.

Physical defect - The physical defect that a person may have must have a relation to the
commission of the crime. In a case where the offender is deaf and dumb, personal property was
entrusted to him and he misappropriated the same. The crime committed was estafa. The fact
that he was deaf and dumb is not mitigating because that does not bear any relation to the
crime committed.

Not any physical defect will affect the crime. It will only do so if it has some relation to
the crime committed. If a person is deaf and dumb and he has been slandered, he cannot talk so
what he did was, he got a piece of wood and struck the fellow on the head. The crime
committed was physical injuries. The Supreme Court held that being a deaf and dumb is
mitigating because the only way is to use his force because he cannot strike back.

If the offender is blind in one eye, as long as his means of action, defense or
communication with others are not restricted, such circumstance is not mitigating. This
circumstance must also have a bearing on the crime committed and must depend on how the
crime was committed.

Analogous cases - The act of the offender of leading the law enforcers to the place
where he buried the instrument of the crime has been considered as equivalent to voluntary
surrender. The act of a thief in leading the authorities to the place where he disposed of the loot
has been considered as analogous or equivalent to voluntary surrender.

Stealing by a person who is driven to do so out of extreme poverty is considered as

analogous to incomplete state of necessity. However, this is not so where the offender became
impoverished because of his own way of living his life. If his lifestyle is one of having so many
vices, as a result of which he became poor, his subsequent stealing because of his poverty will
not be considered mitigated by incomplete state of necessity.

d) Aggravating circumstances

Kinds of aggravating circumstances:

(1) Generic or those that can generally apply to all crime;

(2) Specific or those that apply only to a particular crime;

(3) Qualifying or those that change the nature of the crime;

(4) Inherent or those that must of necessity accompany the commission of the
crime.

he aggravating circumstances must be established with moral certainty, with

the same degree of proof required to establish the crime itself.

Most important of the classification of aggravating circumstances are the

qualifying and the generic aggravating circumstances.

In practice, the so-called generic aggravating circumstances are referred to

simply as aggravating circumstances. The so-called qualifying aggravating circumstances
are simply referred to as qualifying circumstances. This is so because there is no
qualifying circumstance that is not aggravating. To say qualifying aggravating
circumstance is redundant. In the examination, if you find qualifying circumstances, you
have to think about these as aggravating circumstances which are the ingredients of the
crime.

Distinctions between aggravating and qualifying circumstances:

In aggravating circumstances –

(1) The circumstance can be offset by an ordinary mitigating

circumstance;

(2) No need to allege this circumstance in the information, as long as it

is proven during trial. If it is proved during trial, the court would consider the
same in imposing the penalty;

(3) It is not an ingredient of a crime. It only affects the penalty to be

imposed but the crime remains the same.

In qualifying circumstance –
 (1) The circumstance affects the nature of the crime itself such that the
offender shall be liable for a more serious crime. The circumstance is actually an
ingredient of the crime;

(2) Being an ingredient of the crime, it cannot be offset by any

mitigating circumstance;

(3) Qualifying circumstances to be appreciated as such must be

specifically alleged in the complaint or information. If not alleged but proven
during the trial, it will be considered only as generic aggravating circumstance. If
this happens, they are susceptible of being offset by a mitigating circumstance.

An aggravating circumstance is qualifying when it is an ingredient of the crime.

Therefore it is included in the provision of law defining the crime. If it is not so
included, it is not qualifying.

In Article 248, in the crime of murder, the law specifically mentions thereunder
several circumstances which are aggravating under Article 14. All of these will
qualify a killing from homicide to murder; however, you understand that only
one is qualifying.

If let us say, the accused was charged with murder. Three of these
circumstances: treachery, evident premeditation and act was done in
consideration of a price, reward or promise were alleged as aggravating. Only
one of these is qualifying. If any one of the three circumstances was proven, the
crime was already murder. If the other two are also proven, even if they are
alleged in the information or complaint, they are only to be taken as generic. If
there is any mitigating circumstance in favor of the offender, the two other
circumstances which are otherwise qualifying could be offset by the mitigating,
provided the mitigating circumstance is not a privileged mitigating
circumstance. Therefore, if there are three of the qualifying circumstances
alleged in the complaint or information, only one will qualify the crime. The
others will merely be considered as generic. Thus, if there is any ordinary
mitigating circumstance in favor of the accused, such will be wiped out by these
circumstances, although initially they are considered as qualifying. Do not
hesitate to offset on the principle that a qualifying circumstance cannot be
offset by an ordinary mitigating circumstance because only one is necessary.

Even if any of the qualifying circumstances under Article 248 on murder was
proven, if that is not the circumstance alleged in the information, it cannot
qualify the crime. Let us say, what was alleged in the information was treachery.
During the trial, what was proven was the price, reward or promise as a
consideration for killing. The treachery was not proved. Just the same, the
accused cannot be convicted of murder because the circumstance proven is not
 qualifying but merely generic. It is generic because it is not alleged in the
information at all. If any of these qualifying circumstances is not alleged in the
information, it cannot be considered qualifying because a qualifying is an
ingredient of the crime and it cannot be taken as such without having alleged in
the information because it will violate the right of the accused to be informed of
the nature of the accusation against him.

Correlate Article 14 with Article 62. Article 62 gives you the different rules
regarding aggravating circumstances. Aggravating circumstances will not be
considered when it is the crime itself. If the crime charged is qualified trespass
to dwelling, dwelling is no longer aggravating. When the aggravating
circumstance refers to the material execution of the crime, like treachery, it will
only aggravate the criminal liability of those who employed the same.

(i) Generic

Taking advantage of public position - Article 62 was also amended by the

Republic Act No. 7659. The legal import of this amendment is that the subject
circumstance has been made a qualifying or special aggravating that shall not be offset
or compensated by a mitigating circumstance. If not alleged in the information,
however, but proven during the trial, it is only appreciated as a generic aggravating
circumstance.

The mitigating circumstance referred to in the amendment as not affecting the

imposition of the penalty in the maximum are only ordinary mitigating circumstances.
Privileged mitigating circumstances always lower the penalty accordingly.

Disrespect due to rank, age, sex - Aggravating only in crimes against persons
and honor, not against property like Robbery with homicide (People v. Ga, 156 SCRA
790).

Teachers, professors, supervisors of public and duly recognized private schools,

colleges and universities, as well as lawyers are persons in authority only for purposes of
direct assault and simple resistance, but not for purposes of aggravating circumstances
in paragraph 2, Article 14. (People v. Taoan, 182 SCRA 601).

Abuse of confidence - Do not confuse this with mere betrayal of trust. This is
aggravating only when the very offended party is the one who reposed the confidence.
If the confidence is reposed by another, the offended party isdifferent from the fellow
who reposed the confidence and abuse of confidence in this case is not aggravating.

Dwelling – It will only be aggravating if it is the dwelling of the offended party. It

should also not be the dwelling of the offender. If the dwelling is both that of the
offended party and the offender, dwelling is not aggravating.
 Dwelling need not be owned by the offended party. It is enough that he used
the place for his peace of mind, rest, comfort and privacy. The rule that dwelling, in
order to be aggravating must be owned by the offended party is no longer absolute.
Dwelling can be aggravating even if it is not owned by the offended party, provided that
the offended party is considered a member of the family who owns the dwelling and
equally enjoys peace of mind, privacy and comfort.

Band - there should at least be four persons. All of them should be armed. Even
if there are four, but only three or less are armed, it is not a band. Whenever you talk of
band, always have in mind four at least. Do not say three or more because it is four or
more. The way the law defines a band is somewhat confusing because it refers simply to
more than 3, when actually it should be 4 or more.

Correlate this with Article 306 - Brigandage. The crime is the band itself. The
mere forming of a band even without the commission of a crime is already a crime so
that band is not aggravating in brigandage because the band itself is the way to commit
brigandage.

However, where brigandage is actually committed, band becomes aggravating.

Uninhabited place - It is determined not by the distance of the nearest house to

the scene of the crime but whether or not in the place of the commission of the offense
, there was a reasonable possibility of the victim receiving some help.

Nighttime - What if the crime started during the daytime and continued all the
way to nighttime? This is not aggravating. As a rule, the crime must begin and end
during the nighttime. Crime began at day and ended at night, as well as crime began at
night and ended at day is not aggravated by the circumstance of nighttime. Darkness is
what makes this circumstance aggravating.

Recidivism

Habitual Delinquency

Reiteracion

Quasi-recidivism

In consideration of a price, reward or promise - The Supreme Court rulings

before indicate that this circumstance aggravates only the criminal liability of the person
who committed the crime in consideration of the price, promise, or reward but not the
criminal liability of the person who gave the price, reward or consideration. However,
when there is a promise, reward or price offered or given as a consideration for the
commission of the crime, the person making the offer is an inducer, a principal by
inducement while the person receiving the price, reward or promise who would execute
the crime is a principal by direct participation. Hence, their responsibilities are the same.
They are both principals and that is why the recent rulings of the Supreme Court are to
the effect that this aggravating circumstance affects or aggravates not only the criminal
liability of the receiver of the price, reward or promise but also the criminal liability of
the one giving the offer.

By means of inundation or fire - Fire is not aggravating in the crime of arson.

Whenever a killing is done with the use of fire, as when to kill someone, you burn down
his house while the latter is inside, this is murder. There is no such crime as murder with
arson or arson with homicide. The crime committed is only murder. If the victim is
already dead and the house is burned, the crime is arson. It is either arson or murder. If
the intent is to destroy property, the crime is arson even if someone dies as a
consequence. If the intent is to kill, there is murder even if the house is burned in the
process.

Evident premeditation - For evident premeditation to be aggravating, the

following conditions must concur:

(1) The time when the accused determined to commit the crime;

(2) An act manifestly indicating that the accused has clung to his determination;
(3) Sufficient lapse of time between such determination and execution, to allow
him to reflect upon the consequences of his act.

Craft -Aggravating in a case where the offenders pretended to be bona fide

passengers of a jeepney in order not to arouse suspicion, but once inside the
jeepney, robbed the passengers and the driver (People v. Lee, decided on
December 20, 1991).

Abuse of superior strength - There must be evidence of notorious inequality of

forces between the offender and the offended party in their age, size and
strength, and that the offender took advantage of such superior strength in
committing the crime. The mere fact that there were two persons who attacked
the victim does not per se constitute abuse of superior strength (People v.
Carpio, 191 SCRA 12).

Treachery - It refers to the employment of means, method and form in the

commission of the crime which tend directly and specially to insure its execution
without risk to himself arising from the defense which the offended party might
make. The means, method or form employed my be an aggravating
circumstance which like availing of total darkness in nighttime or availing of
superior strength taken advantage of by the offender, employing means to
weaken the defense.
Unlawful Entry – It is inherent in the crime of robbery with force upon things
but aggravating in the crime of robbery with violence against or intimidation of
persons.

Motor vehicle - The Supreme Court considers strictly the use of the word
“committed”, that the crime is committed with the use of a motor vehicle,
motorized means of transportation or motorized watercraft. There is a decision
by the Court of Appeals that a motorized bicycle is a motor vehicle even if the
offender used only the foot pedal because he does not know how to operate
the motor so if a bicycle is used in the commission of the crime, motor vehicle
becomes aggravating if the bicycle is motorized.

This circumstance is aggravating only when used in the commission of the

offense. If motor vehicle is used only in the escape of the offender, motor
vehicle is not aggravating. To be aggravating, it must have been used to
facilitate the commission of the crime. Aggravating when a motorized tricycle
was used to commit the crime

Organized or syndicated crime group - In the same amendment to Article 62 of

the Revised Penal Code, paragraphs were added which provide that the
maximum penalty shall be imposed if the offense was committed by any person
who belongs to an organized or syndicated crime group.

An organized or syndicated crime group means a group of two or more persons

collaborating, confederating or mutually helping one another for purposes of
gain in the commission of a crime.

With this provision, the circumstance of an organized or syndicated crime group

having committed the crime has been added in the Code as a special
aggravating circumstance. The circumstance being special or qualifying, it must
be alleged in the information and proved during the trial. Otherwise, if not
alleged in the information, even though proven during the trial, the court
cannot validly consider the circumstances because it is not among those
enumerated under Article 14 of the Code as aggravating. It is noteworthy,
however, that there is an organized or syndicated group even when only two
persons collaborated, confederated, or mutually helped one another in the
commission of a crime, which acts are inherent in a conspiracy. Where
therefore, conspiracy in the commission of the crime is alleged in the
information, the allegation may be considered as procedurally sufficient to
warrant receiving evidence on the matter during trial and consequently, the said
special aggravating circumstance can be appreciated if proven.

(ii) Qualifying
 (a) Decree Codifying the Laws on Illegal/Unlawful Possession,
Manufacture, Dealing in, Acquisition or Disposition, of Firearms, Ammunition
or Explosives (P.D. 1866, as amended by R.A. No. 8294) as an aggravating
circumstance

(b) The Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165)

(i) As a qualifying aggravating circumstance

(ii) Immunity from prosecution and punishment, coverage

(iii) Minor offenders

(iv) Application/Non- application of RPC provisions (Sec. 98,

R.A. No. 9165) provisions (Sec. 98) cf. Art. 10, RPC e) Alternative
circumstances

f) Absolutory cause

The effect of this is to absolve the offender from criminal liability, although not
from civil liability. It has the same effect as an exempting circumstance, but you do not call it as
such in order not to confuse it with the circumstances under Article 12.

Article 20 provides that the penalties prescribed for accessories shall not be imposed
upon those who are such with respect to their spouses, ascendants, descendants, legitimate,
natural and adopted brothers and sisters, or relatives by affinity within the same degrees with
the exception of accessories who profited themselves or assisting the offender to profit by the
effects of the crime.

Then, Article 89 provides how criminal liability is extinguished:

Death of the convict as to the personal penalties, and as to pecuniary penalties, liability
therefor is extinguished if death occurs before final judgment; Service of the sentence;

Amnesty;

Absolute pardon;

Prescription of the crime;

Prescription of the penalty; and

Marriage of the offended woman as provided in Article 344.

Under Article 247, a legally married person who kills or inflicts physical injuries upon his
or her spouse whom he surprised having sexual intercourse with his or her paramour or mistress
in not criminally liable.
 Under Article 219, discovering secrets through seizure of correspondence of the ward by
their guardian is not penalized.

Under Article 332, in the case of theft, swindling and malicious mischief, there is no
criminal liability but only civil liability, when the offender and the offended party are related as
spouse, ascendant, descendant, brother and sister-in-law living together or where in case the
widowed spouse and the property involved is that of the deceased spouse, before such property
had passed on to the possession of third parties.

Under Article 344, in cases of seduction, abduction, acts of lasciviousness, and rape, the
marriage of the offended party shall extinguish the criminal action.

Absolutory cause has the effect of an exempting circumstance and they are predicated
on lack of voluntariness like instigation. Instigation is associated with criminal intent. Do not
consider culpa in connection with instigation. If the crime is culpable, do not talk of instigation.
In instigation, the crime is committed with dolo. It is confused with entrapment. Entrapment is
not an absolutory cause. Entrapment does not exempt the offender or mitigate his criminal
liability. But instigation absolves the offender from criminal liability because in instigation, the
offender simply acts as a tool of the law enforcers and, therefore, he is acting without criminal
intent because without the instigation, he would not have done the criminal act which he did
upon instigation of the law enforcers.

4. Persons criminally liable/Degree of participation

Under the Revised Penal Code, when more than one person participated in the commission of the crime, the law looks into their
participation because in punishing offenders, the Revised Penal Code classifies them as:
(1) principal;
(2) accomplice; or
(3) accessory.

This classification is true only under the Revised Penal Code and is not used under special laws, because the penalties under the
latter are never graduated. Do not use the term principal when the crime committed is a violation of special law. Only use the term
“offender.” Also only classify offenders when more than one took part in the commission of the crime to determine the proper penalty
to be imposed. So, if only one person committed a crime, do not use principal. Use the “offenders,” “culprits,” or the “accused.”

When a problem is encountered where there are several participants in the crime, the first thing to find out is if there is a conspiracy.
If there is, as a general rule, the criminal liability of all will be the same, because the act of one is the act of all. However, if the
participation of one is so insignificant, such that even without his cooperation, the crime would be committed just as well, then
notwithstanding the existence of a conspiracy, such offender will be regarded only as an accomplice. The reason for this ruling is that
the law favors a milder form of criminal liability if the act of the participant does not demonstrate a clear perversity. As to the
liability of the participants in a felony, the Code takes into consideration whether the felony committed is grave, less grave, or light.
When the felony is grave, or less grave, all participants are criminally liable. But where the felony is only light only the principal
and the accomplice are liable. The accessory is not. But even the principal and the accomplice will not be liable if the felony
committed is only light and the same is not consummated unless such felony is against persons or property. If they are not and the
same is not consummated, even the principal and the accomplice are not liable. Therefore it is only when the light felony is against
person or property that criminal liability attaches to the principal or accomplice, even though the felony is only attempted or
frustrated, but accessories are not liable for liable for light felonies.
Principal by indispensable cooperation distinguished from an accomplice
It is not just a matter of cooperation, it is more than if the crime could hardly be committed. It is not that the crime would not be
committed because if that is what you would imply it becomes an ingredient of the crime and that is not what the law contemplates.
In the case of rape, where three men were accused, one was on top of the woman, one held the hands, one held the legs, the Supreme
Court ruled that all participants are principals. Those who held the legs and arms are principals by indispensable cooperation. The
accused are father and son. The father told his son that the only way to convince the victim to marry him is to resort to rape. So
when they saw the opportunity the young man grabbed the woman, threw her on the ground and placed himself on top of her while
the father held both legs of the woman and spread them. The Supreme Court ruled that the father is liable only as an accomplice.

The point is not just on participation but on the importance of participation in committing the crime. In the first situation, the facts
indicate that if the fellow who held the legs of the victim and spread them did not do so, the offender on top could hardly penetrate
because the woman was strong enough to move or resist. In the second situation, the son was much bigger than the woman so
considering the strength of the son and the victim, penetration is possible even without the assistance of the father. The son was a
robust farm boy and the victim undernourished. The act of the father in holding the legs of the victim merely facilitated the
penetration but even without it the son would have penetrated. The basis is the importance of the cooperation to the consummation
of the crime. If the crime could hardly be committed without such cooperation, then such cooperation would bring about a principal.
But if the cooperation merely facilitated or hastened the consummation of the crime, this would make the cooperator merely an
accomplice. In a case where the offender was running after the victim with a knife. Another fellow came and blocked the way of the
victim and because of this, the one chasing the victim caught up and stabbed the latter at the back. It was held that the fellow who
blocked the victim is a principal by indispensable cooperation because if he did not block the way of the victim, the offender could
not have caught up with the latter. In another case, A was mauling B. C, a friend of B tried to approach but D stopped C so that A
was able to continuously maul B. The liability of the fellow who stopped the friend from approaching is as an accomplice.
Understandably he did not cooperate in the mauling, he only stopped to other fellow from stopping the mauling. In case of doubt,
favor the lesser penalty or liability. Apply the doctrine of pro reo.

Principal by inducement
Concept of the inducement – one strong enough that the person induced could hardly resist. This is tantamount to an irresistible
force compelling the person induced to carry out the execution of the crime. Ill advised language is not enough unless he who made
such remark or advice is a coconspirator in the crime committed. While in the course of a quarrel, a person shouted to A, “Kill him!
Kill him.” A killed the other fellow. Is the person who shouted criminally liable. Is that inducement? No. It must be strong as
irresistible force.

There was a quarrel between two families. One of the sons of family A came out with a shotgun. His mother then shouted, “Shoot!”.
He shot and killed someone. Is the mother liable? No. Examples of inducement: “I will give you a large amount of money.” “I will
not marry you if you do not kill B”(let us say he really loves the inducer). They practically become co-conspirators. Therefore you do
not look into the degree of inducement anymore.

In People v. Balderrama, Ernesto shouted to his younger brother Oscar, “Birahin mo na, birahin mo na.” Oscar stabbed the
victim. It was held that there was no conspiracy. Joint or simultaneous action per se is not indicia of conspiracy without showing of
common design. Oscar has no rancor with the victim for him to kill the latter. Considering that Ernesto had great moral ascendancy
and influence over Oscar being much older, 35 years old, than the latter, who was 18 yrs old, and it was Ernesto who provided his
allowance, clothing as well as food and shelter, Ernesto is principal by inducement.

In People v. Agapinay, 186 SCRA 812, the one who uttered “Kill him, we will bury him,” while the felonious aggression was
taking place cannot be held liable as principal by inducement. Utterance was said in the excitement of the hour, not a command to
be obeyed.

In People v. Madali, 188 SCRA 69, the son was mauled. The family was not in good graces of the neighborhood. Father
challenged everybody and when neighbors approached, he went home to get a rifle. The shouts of his wife “Here comes another, shoot
him” cannot make the wife the principal by inducement. It is not the determining cause of the crime in the absence of proof that the
words had
great dominance and influence over the husband. Neither is the wife’s act of beaming the victim with a flashlight indispensable to
the commission of the killing. She assisted her husband in taking good aim, but such assistance merely facilitated the felonious act of
shooting. Considering that it was not so dark and the husband could have accomplished the deed without his wife’s help, and
considering further that doubts must be resolved in favor of the accused, the liability of the wife is only that of an accomplice.

Accessories
Two situations where accessories are not criminally liable:
(1) When the felony committed is a light felony;
(2) When the accessory is related to the principal as spouse, or as an ascendant, or descendant or as brother or sister whether
legitimate, natural or adopted or where the accessory is a relative by affinity within the same degree, unless the accessory himself
profited from the effects or proceeds of the crime or assisted the offender to profit therefrom.

One cannot be an accessory unless he knew of the commission of the crime. One must not have participated in the commission of the
crime. The accessory comes into the picture when the crime is already consummated. Anyone who participated before the
consummation of the crime is either a principal or an accomplice. He cannot be an accessory. When an offender has already involved
himself as a principal or accomplice, he cannot be an accessory any further even though he performs acts pertaining to an accessory.

Accessory as a fence
The Revised Penal Code defines what manners of participation shall render an offender liable as an accessory. Among the
enumeration is “by profiting themselves or by assisting the offender to profit by the effects of the crime”. So the accessory shall be
liable for the same felony committed by the principal. However, where the crime committed by the principal was robbery or theft,
such participation of an accessory brings about criminal liability under Presidential Decree No. 1612 (Anti-Fencing Law).
One who knowingly profits or assists the principal to profit by the effects of robbery or theft is not just an accessory to the crime, but
principally liable for fencing under Presidential Decree No. 1612. Any person who, with intent to gain, acquires and/or sell,
possesses, keeps or in any manner deals with any article of value which he knows or should be known to him to be the proceeds of
robbery or theft is considered a “fence” and incurs criminal liability for “fencing” under said decree. The penalty is higher than that
of a mere accessory to the crime of robbery or theft. Likewise, the participation of one who conceals the effects of robbery or theft gives
rise to criminal liability for “fencing”, not simply of an accessory under paragraph 2 of Article 19 of the Code. Mere possession of
any article of value which has been the subject of robbery or theft brings about the presumption of “fencing”.

Presidential Decree No. 1612 has, therefore, modified Article 19 of the Revised Penal Code.

Acquiring the effects of piracy or brigandage

It is relevant to consider in connection with the criminal liability of accessories under the Revised Penal Code, the liability of persons
acquiring property subject of piracy or brigandage. The act of knowingly acquiring or receiving property which is the effect or the
proceeds of a crime generally brings about criminal liability of an accessory under Article 19, paragraph 1 of the Revised Penal
Code. But if the crime was piracy of brigandage under Presidential Decree No. 533 (Anti-piracy and Anti-Highway Robbery Law of
1974), said act constitutes the crime of abetting piracy or abetting brigandage as the case may be, although the penalty is that for
an accomplice, not just an accessory, to the piracy or brigandage. To this end, Section 4 of Presidential Decree No. 532 provides
that any person who knowingly and in any manner… acquires or receives property taken by such pirates or brigands or in any
manner derives benefit therefrom… shall be considered as an accomplice of the principal offenders and be punished in accordance
with the Rules prescribed by the Revised Penal Code.

It shall be presumed that any person who does any of the acts provided in this Section has performed
them knowingly, unless the contrary is proven. Although Republic Act No. 7659, in amending Article 122 of the Revised Penal
Code, incorporated therein the crime of piracy in Philippine territorial waters and thus correspondingly superseding Presidential
Decree No. 532, Section 4 of the Decree which punishes said acts as a crime of abetting piracy or brigandage, still stands as it has
not been repealed nor modified, and is not inconsistent with any provision of Republic Act No. 7659.

Destroying the corpus delicti

When the crime is robbery or theft, with respect to the second involvement of an accessory, do not overlook the purpose which must be
to prevent discovery of the crime. The corpus delicti is not the body of the person who is killed, even if the corpse is not recovered, as
long as that killing is established beyond reasonable doubt, criminal liability will arise and if there is someone who destroys the
corpus delicti to prevent discovery, he becomes an accessory.

Harboring or concealing an offender

In the third form or manner of becoming an accessory, take note that the law distinguishes between a public officer harboring,
concealing or assisting the principal to escape and a private citizen or civilian harboring concealing or assisting the principal to
escape. In the case of a public officer, the crime committed by the principal is immaterial. Such officer becomes an accessory by the
mere fact that he helped the principal to escape by harboring or concealing, making use of his public function and thus abusing the
same.

On the other hand, in case of a civilian, the mere fact that he harbored concealed or assisted the
principal to escape does not ipso facto make him an accessory. The law requires that the principal must have committed the crime of
treason, parricide, murder or attempt on the life of the Chief Executive. If this is not the crime, the civilian does not become an
accessory unless the principal is known to be habitually guilty of some other crime. Even if the crime committed by the principal is
treason, or murder or parricide or attempt on the life of the Chief Executive, the accessory cannot be held criminally liable without
the principal being found guilty of any such crime. Otherwise the effect would be that the accessory merely harbored or assisted in
the escape of an innocent man, if the principal is acquitted of the charges.
a) Decree Penalizing Obstruction of Apprehension and Prosecution of Criminal
Offenders (P.D. 1829)

(i) Punishable acts

(ii) Compare with Art. 20, RPC (accessories exempt from criminal liability)

5. Penalties

Measures of prevention not considered as penalty

The following are the measures of prevention or safety which are not considered penalties under Article 24:
(1) The arrest and temporary detention of accused persons as well as their detention by reason of insanity or imbecility or illness
requiring their confinement in a hospital.
(2) The commitment of a minor to any of the institutions mentioned in art. 80 for the purposes specified therein.
(3) Suspension from the employment or public office during the trial or in order to institute proceedings.
(4) Fines and other corrective measures which, in the exercise of their administrative disciplinary powers, superior officials may
impose upon their subordinates.
(5) Deprivation of rights and reparations which the civil laws may establish in penal form.

Why does the Revised Penal Code specify that such detention shall not be a penalty but merely a preventive measure?
This article gives justification for detaining the accused. Otherwise, the detention would violate the constitutional provision that no
person shall be deprived of life, liberty and property without due process of law. And also, the constitutional right of an accused to
be presumed innocent until the contrary is proved.

Repeal of Article 80
When may a minor be committed to a reformatory?
If the minor is between 9 - 15 years old and acted with discernment, sentence must first be suspended under the following conditions:
(1) Crime committed is not punishable by death or reclusion perpetua;
(2) He is availing of the benefit of suspension for the first time;
(3) He must still be a minor at the time of promulgation of the sentence.

Correlating Article 24 with Article 29

Although under Article 24, the detention of a person accused of a crime while the case against him is being tried does not amount to
a penalty, yet the law considers this as part of the imprisonment and generally deductible from the sentence. When will this credit
apply? If the penalty imposed consists of a deprivation of liberty. Not all who have undergone preventive imprisonment shall be
given a credit

Under Article 24, preventive imprisonment of an accused who is not yet convicted, but by express provision of Article24 is not a
penalty. Yet Article 29, if ultimately the accused is convicted and the penalty imposed involves deprivation of liberty, provides that
the period during which he had undergone preventive detention will be deducted from the sentence, unless he is one of those
disqualified under the law.

So, if the accused has actually undergone preventive imprisonment, but if he has been convicted for two or more crimes whether he is
a recidivist or not, or when he has been previously summoned but failed to surrender and so the court has to issue a warrant for his
arrest, whatever credit he is entitled to shall be forfeited. If the offender is not disqualified from the credit or deduction provided for
in Article 29 of the Revised Penal Code, then the next thing to determine is whether he signed an undertaking to abide by the same
rules and regulations governing convicts. If he signed an undertaking to abide by the same rules and regulations governing convicts,
then it means that while he is suffering from preventive imprisonment, he is suffering like a convict, that is why the credit is full.
But if the offender did not sign an undertaking, then he will only be subjected to the rules and regulations governing detention
prisoners. As such, he will only be given 80% or 4/5 of the period of his preventive detention.

From this provision, one can see that the detention of the offender may subject him only to the treatment applicable to a detention
prisoner or to the treatment applicable to convicts, but since he is not convicted yet, while he is under preventive imprisonment, he
cannot be subjected to the treatment applicable to convicts unless he signs and agrees to be subjected to such disciplinary measures
applicable to convicts. Detention prisoner has more freedom within the detention institution rather than those already convicted. The
convicted prisoner suffers more restraints and hardship than detention prisoners.

Under what circumstances may a detention prisoner be released, even though the proceedings against him are not yet terminated? on
September 20, 1980. This amendment is found in the Rules of Court, under the rules on bail in Rule 114 of the Rules on Criminal
Procedure, the same treatment exactly is applied there. In the amendment, the law does not speak of credit. Whether the person is
entitled to credit is immaterial. The discharge of the offender from preventive imprisonment or detention is predicated on the fact
that even if he would be found guilty of the crime charged, he has practically served the sentence already, because he has been
detained for a period already equal to if not greater than the maximum penalty that would be possibly be imposed on him if found
guilty. If the crime committed is punishable only by destierro, the most the offender may be held under preventive imprisonment is 30
days, and whether the proceedings are terminated or not, such detention prisoner shall be discharged. Understand the amendment
made to Article 29. This amendment has been incorporated under Rule 114 precisely to do away with arbitrary detention. Proper
petition for habeas corpus must be filed to challenge the legality of the detention of the prisoner.

a) Classification

Principal penalties and accessory penalties

The penalties which are both principal and accessory penalties are the following:
(1) Perpetual or temporary absolute disqualification;
(2) Perpetual or temporary special disqualification.

The classification of principal and accessory is found in Article 25. In classifying the penalties as principal and accessory, what is
meant by this is that those penalties classified as accessory penalties need not be stated in the sentence. The accessory penalties follow
the principal penalty imposed for the crime as a matter of course. So in the imposition of the sentence, the court will specify only the
principal penalty but that is not the only penalty which the offender will suffer. Penalties which the law considers as accessory to the
prescribed penalty are automatically imposed even though they are not stated in the judgment. As to the particular penalties that
follow a particular principal penalty, Articles 40 to 45 of the Revised Penal Code shall govern. If asked what are the accessory
penalties, do not just state the accessory penalties. State the principal penalty and the corresponding accessory penalties.
Penalties in which other accessory penalties are inherent:
(1) Article 40. Death - perpetual absolute disqualification, and civil interdiction during 30 years following date of sentence;
(2) Article 41. Reclusion perpetua and reclusion temporal - civil interdiction for life or during the period of the sentence as the case
may be, and perpetual absolute disqualification;
(3) Article 42. Prision mayor - temporary absolute disqualification perpetual special disqualification from the right of suffrage;
(4) Article 43. Prision correccional - suspension from public office, from the right to follow a profession or calling, and perpetual
special disqualification from the rights of suffrage if the duration of said imprisonment shall exceed 18 months.
(5) Article 44. Arresto - suspension of the right to hold office and the right of suffrage during the term of the sentence.

There are accessory penalties which are true to other principal penalties. An example is the penalty of civil interdiction. This is an
accessory penalty and, as provided in Article 34, a convict sentenced to civil interdiction suffers certain disqualification during the
term of the sentence. One of the disqualifications is that of making a conveyance of his property inter vivos.

b) Duration and Effect

Reclusion perpetua
What is the duration of reclusion perpetua?
Do not answer Article 27 to this question. The proper answer would be that reclusion perpetua has no duration because this is an
indivisible penalty and indivisible penalties have no durations. Under Article 27, those sentenced to reclusion perpetua shall be
pardoned after undergoing the penalty for 30 years, unless such person, by reason of his conduct or some other serious cause, shall be
considered by the Chief Executive as unworthy of pardon. Under Article 70, which is the Three-Fold Rule, the maximum period shall
in no case exceed 40 years. If a convict who is to serve several sentences could only be made to serve 40 years, with more reason, one
who is sentenced to a singly penalty of reclusion perpetua should not be held for more than 40 years. The duration of 40 years is not
a matter of provision of law; this is only by analogy. There is no provision of the Revised Penal Code that one sentenced to reclusion
perpetua cannot be held in jail for 40 years and neither is there a decision to this effect.

Destierro
What is the duration of destierro?
The duration of destierro is from six months and one day, to six year, which is the same as that of prision correcional and suspension.
Destierro is a principal penalty. It is a punishment whereby a convict is vanished to a certan place and is prohibited form entering or
coming near that place designated in the sentence, not less than 25 Kms.. However, the court cannot extend beyond 250 Kms. If the
convict should enter the prohibited places, he commits the crime of evasion of service of court, there is no evasion of sentence because
the 240-Km. limit is upon the authority of the court in vanishing the convict.

Under the Revised Penal Code, destierro is the penalty imposed in the following situations:
(1) When a legally married person who had surprised his or her spouse in the act of sexual intercourse with another and while in
that act or immediately thereafter should kill or inflict serious physical injuries upon the other spouse, and/or the paramour or
mistress. This is found in Article 247.
(2) In the crime of grave threat or light threat, when the offender is required to put up a bond for good behavior but failed or refused
to do so under Article 284, such convict shall be sentenced to destierro so that he would not be able to carry out his threat.
(3) In the crime of concubinage, the penalty prescribed for the concubine is destierro under Article 334.
(4) Where the penalty prescribed by law is arresto mayor, but the offender is entitled privileged mitigating circumstance and
lowering the prescribed penalty by one degree, the penalty one degree lower is destierro. Thus, it shall be the one imposed.

Civil Interdiction
Civil interdiction is an accessory penalty. Civil interdiction shall deprive the offender during the time of his sentence:
(1) The rights of parental authority, or guardianship either as to the person or property of any ward;
(2) Marital authority;
(3) The right to manage his property; and
(4) The right to dispose of such property by any act or any conveyance inter vivos.
c) Indeterminate Sentence Law (R.A. No. 4103, as amended)

Three things to know about the Indeterminate Sentence Law:

(1) Its purpose;
(2) Instances when it does not apply; and
(3) How it operates

Indeterminate Sentence Law governs whether the crime is punishable under the Revised Penal Code or a special Law. It is not limited
to violations of the Revised Penal Code. It applies only when the penalty served is imprisonment. If not by imprisonment, then it does
not apply.

The purpose of the Indeterminate Sentence law is to avoid prolonged imprisonment, because it is proven to be more destructive than
constructive to the offender. So, the purpose of the Indeterminate Sentence Law in shortening the possible detention of the convict in
jail is to save valuable human resources. In other words, if the valuable human resources were allowed prolonged confinement in jail,
they would deteriorate. Purpose is to preserve economic usefulness for these people for having committed a crime -- to reform them
rather than to deteriorate them and, at the same time, saving the government expenses of maintaining the convicts on a prolonged
confinement in jail. If the crime is a violation of the Revised Penal Code, the court will impose a sentence that has a minimum and
maximum. The maximum of the indeterminate sentence will be arrived at by taking into account the attendant mitigating and/or
aggravating circumstances according to Article 64 of the Revised Penal Code. In arriving at the minimum of the indeterminate
sentence, the court will take into account the penalty prescribed for the crime and go one degree lower. Within the range of one
degree lower, the court will fix the minimum for the indeterminate sentence, and within the range of the penalty arrived at as the
maximum in the indeterminate sentence, the court will fix the maximum of the sentence. If there is a privilege mitigating
circumstance which has been taken in consideration in fixing the maximum of the indeterminate sentence, the minimum shall be
based on the penalty as reduced by the privilege mitigating circumstance within the range of the penalty next lower in degree. If the
crime is a violation of a special law, in fixing the maximum of the indeterminate sentence, the court will impose the penalty within
the range of the penalty prescribed by the special law, as long as it will not exceed the limit of the penalty. In fixing the minimum,
the court can fix a penalty anywhere within the range of penalty prescribed by the special law, as long as it will not be less than the
minimum limit of the penalty under said law. No mitigating and aggravating circumstances are taken into account.

The minimum and the maximum referred to in the Indeterminate Sentence Law are not periods. So, do not say, maximum or
minimum period. For the purposes of the indeterminate Sentence Law, use the term minimum to refer to the duration of the sentence
which the convict shall serve as a minimum, and when we say maximum, for purposes of ISLAW, we refer to the maximum limit of
the duration that the convict may be held in jail. We are not referring to any period of the penalty as enumerated in Article 71.

Courts are required to fix a minimum and a maximum of the sentence that they are to impose upon an offender when found guilty of
the crime charged. So, whenever the Indeterminate Sentence Law is applicable, there is always a minimum and maximum of the
sentence that the convict shall serve. If the crime is punished by the Revised Penal Code, the law provides that the maximum shall be
arrived at by considering the mitigating and aggravating circumstances in the commission of the crime according to the proper rules
of the Revised Penal Code. To fix the maximum, consider the mitigating and aggravating circumstances according to the rules found
in Article 64. This means –
(1) Penalties prescribed by the law for the crime committed shall be imposed in the medium period if no mitigating or aggravating
circumstance;
(2) If there is aggravating circumstance, no mitigating, penalty shall be imposed in the maximum;
(3) If there is mitigating circumstance, no aggravating, penalty shall be in the minimum;
(4) If there are several mitigating and aggravating circumstances, they shall offset against each other. Whatever remains, apply the
rules.
(5) If there are two or more mitigating circumstance and no aggravating circumstance, penalty next lower in degree shall be the one
imposed.
Rule under Art 64 shall apply in determining the maximum but not in determining the minimum. In determining the applicable
penalty according to the Indeterminate Sentence Law, there is no need to mention the number of years, months and days; it is
enough that the name of the penalty is mentioned while the Indeterminate Sentence Law is applied. To fix the minimum and the
maximum of the sentence, penalty under the Revised Penal Code is not the penalty to be imposed by court because the court must
apply the Indeterminate Sentence Law. The attendant mitigating and/or aggravating circumstances in the commission of the crime
are taken into consideration only when the maximum of the penalty is to be fixed. But in so far as the minimum is concerned, the
basis of the penalty prescribed by the Revised Penal Code, and go one degree lower than that. But penalty one degree lower shall be
applied in the same manner that the maximum is also fixed based only on ordinary mitigating circumstances. This is true only if the
mitigating circumstance taken into account is only an ordinary mitigating circumstance. If the mitigating circumstance is privileged,
you cannot follow the law in so far as fixing the minimum of the indeterminate sentence is concerned; otherwise, it may happen that
the maximum of the indeterminate sentence is lower than its minimum.

In one Supreme Court ruling, it was held that for purposes of applying the Indeterminate Sentence Law, the penalty prescribed by
the Revised Penal Code and not that which may be imposed by court. This ruling, however, is obviously erroneous. This is so because
such an interpretation runs contrary to the rule of pro reo, which provides that the penal laws should always be construed an applied
in a manner liberal or lenient to the offender. Therefore, the rule is, in applying the Indeterminate Sentence Law, it is that penalty
arrived at by the court after applying the mitigating and aggravating circumstances that should be the basis.

Crimes punished under special law carry only one penalty; there are no degree or periods. Moreover, crimes under special law do not
consider mitigating or aggravating circumstance present in the commission of the crime. So in the case of statutory offense, no
mitigating and no aggravating circumstances will be taken into account. Just the same, courts are required in imposing the penalty
upon the offender to fix a minimum that the convict should serve, and to set a maximum as the limit of that sentence. Under the
law, when the crime is punished under a special law, the court may fix any penalty as the maximum without exceeding the penalty
prescribed by special law for the crime committed. In the same manner, courts are given discretion to fix a minimum anywhere within
the range of the penalty prescribed by special law, as long as it will not be lower than the penalty prescribed.

Disqualification may be divided into three, according to –

(1) The time committed;
(2) The penalty imposed; and
(3) The offender involved.

The Indeterminate Sentence Law shall not apply to:

(1) Persons convicted of offense punishable with death penalty or life imprisonment;
(2) Persons convicted of treason, conspiracy or proposal to commit treason;
(3) Persons convicted of misprision of treason, rebellion, sedition, espionage;
(4) Persons convicted of piracy;
(5) Persons who are habitual delinquents;
(6) Persons who shall have escaped from confinement or evaded sentence;
(7) Those who have been granted conditional pardon by the Chief Executive and shall have violated the term thereto;
(8) Those whose maximum term of imprisonment does not exceed one year, but not to those already sentenced by final judgment at
the time of the approval of Indeterminate Sentence Law.

Although the penalty prescribed for the felony committed is death or reclusion perpetua, if after considering the attendant
circumstances, the imposable penalty is reclusion temporal or less, the Indeterminate Sentence Law applies (People v. Cempron, 187
SCRA 278).

d.) Three-fold rule

Under this rule, when a convict is to serve successive penalties, he will not actually serve the penalties imposed by law. Instead, the
most severe of the penalties imposed on him shall be multiplied by three and the period will be the only term of the penalty to be
served by him. However, in no case should the penalty exceed 40 years. This rule is intended for the benefit of the convict and so,
you will only apply this provided the sum total of all the penalties imposed would be greater than the product of the most severe
penalty multiplied by three but in no case will the penalties to be served by the convict be more than 40 years.
Although this rule is known as the Three-Fold rule, you cannot actually apply this if the convict is to serve only three successive
penalties. The Three-Fold Rule can only be applied if the convict is to serve four or more sentences successively. If the sentences
would be served simultaneously, the Three-Fold rule does not govern. The chronology of the penalties as provided in Article 70 of the
Revised Penal Code shall be followed. It is in the service of the penalty, not in the imposition of the penalty, that the Three-Fold
rule is to be applied. The three-Fold rule will apply whether the sentences are the product of one information in one court, whether
the sentences are promulgated in one day or whether the sentences are promulgated by different courts on different days. What is
material is that the convict shall serve more than three successive sentences.

For purposes of the Three-Fold Rule, even perpetual penalties are taken into account. So not only penalties with fixed duration, even
penalties without any fixed duration or indivisible penalties are taken into account. For purposes of the Three-Fold rule, indivisible
penalties are given equivalent of 30 years. If the penalty is perpetual disqualification, it will be given and equivalent duration of
30 years, so that if he will have to suffer several perpetual disqualification, under the Three-Fold rule, you take the most severe and
multiply it by three. The Three-Fold rule does not apply to the penalty prescribed but to the penalty imposed as determined by the
court.
e.) Subsidiary imprisonment

When is subsidiary penalty applied

(1) If the subsidiary penalty prescribed for the non-payment of fine which goes with the principal penalty, the maximum duration of
the subsidiary penalty is one year, so there is no subsidiary penalty that goes beyond one year. But this will only be true if the one
year period is higher than 1/3 of the principal penalty, the convict cannot be made to undergo subsidiary penalty more than 1/3 of
the duration of the principal penalty and in no case will it be more than 1 year - get 1/3 of the principal penalty - whichever is
lower.
(2) If the subsidiary penalty is to be imposed for non payment of fine and the principal penalty imposed be fine only, which is a
single penalty, that means it does not go with another principal penalty, the most that the convict will be required to undergo
subsidiary imprisonment is six months, if the felony committed is grave or less grave, otherwise, if the felony committed is slight, the
maximum duration of the subsidiary penalty is only 15 days. There are some who use the term subsidiary imprisonment. The term is
wrong because the penalty is not only served by imprisonment. The subsidiary penalty follows the nature of the principal penalty. If
the principal penalty is destierro, this being a divisible penalty, and a penalty with a fixed duration, the non-payment of the fine
will bring about subsidiary penalty. This being a restriction of liberty with a fixed duration under Article 39 for the nonpayment of
fine that goes with the destierro, the convict will be required to undergo subsidiary penalty and it will also be in the form of
destierro.
f) Probation Law (P.D. 968, as amended by R.A. No. 10707)

Among the different grounds of partial extinction of criminal liability, the most important is probation. Probation is a manner of
disposing of an accused who have been convicted by a trial court by placing him under supervision of a probation officer, under such
terms and conditions that the court may fix.This may be availed of before the convict begins serving sentence by final judgment and
provided that he did not appeal anymore from conviction. Without regard to the nature of the crime, only those whose penalty does
not exceed six years of imprisonment are those qualified for probation. If the penalty is six years plus one day, he is no longer
qualified for probation.

If the offender was convicted of several offenses which were tried jointly and one decision was rendered where multiple sentences
imposed several prison terms as penalty, the basis for determining whether the penalty disqualifies the offender from probation or not
is the term of the individual imprisonment and not the totality of all the prison terms imposed in the decision. So even if the prison
term would sum up to more than six years, if none of the individual penalties exceeds six years, the offender is not disqualified by
such penalty from applying for probation. On the other hand, without regard to the penalty, those who are convicted of subversion
or any crime against the public order are not qualified for probation. So know the crimes under Title III, Book 2 of the Revised Penal
Code. Among these crimes is Alarms and Scandals, the penalty of which is only arresto menor or a fine. Under the amendment to the
Probation Law, those convicted of a crime against public order regardless of the penalty are not qualified for probation.

May a recidivist be given the benefit of Probation Law?

As a general rule, no. Exception: If the earlier conviction refers to a crime the penalty of which does not exceed 30 days
imprisonment or a fine of not more than P200.00, such convict is not disqualified of the benefit of probation. So even if he would be
convicted subsequently of a crime embraced in the same title of the Revised Penal Code as that of the earlier conviction, he is not
disqualified from probation provided that the penalty of the current crime committed does not go beyond six years and the nature of
the crime committed by him is not against public order, national security or subversion.

Although a person may be eligible for probation, the moment he perfects an appeal from the judgment of conviction, he cannot avail
of probation anymore. So the benefit of probation must be invoked at the earliest instance after conviction. He should not wait up to
the time when he interposes an appeal or the sentence has become final and executory. The idea is that probation has to be invoked
at the earliest opportunity. An application for probation is exclusively within the jurisdiction of the trial court that renders the
judgment. For the offender to apply in such court, he should not appeal such judgment. Once he appeals, regardless of the purpose of
the appeal, he will be disqualified from applying for Probation, even though he may thereafter withdraw his appeal.

If the offender would appeal the conviction of the trial court and the appellate court reduced the penalty to say, less than six years,
that convict can still file an application for probation, because the earliest opportunity for him to avail of probation came only after
judgment by the appellate court. Whether a convict who is otherwise qualified for probation may be give the benefit of probation or
not, the courts are always required to conduct a hearing. If the court denied the application for probation without the benefit of the
hearing, where as the applicant is not disqualified under the provision of the Probation Law, but only based on the report of the
probation officer, the denial is correctible by certiorari, because it is an act of the court in excess of jurisdiction or without
jurisdiction, the order denying the application therefore is null and void.

Probation is intended to promote the correction and rehabilitation of an offender by providing him with individualized treatment; to
provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence;
to prevent the commission of offenses; to decongest our jails; and to save the government much needed finance for maintaining
convicts in jail Probation is only a privilege. So even if the offender may not be disqualified of probation, yet the court believes that
because of the crime committed it was not advisable to give probation because it would depreciate the effect of the crime, the court
may refuse or deny an application for probation. Generally, the courts do not grant an application for probation for violation of the
Dangerous Drugs Law, because of the prevalence of the crime. So it is not along the purpose of probation to grant the convict the
benefit thereof, just the individual rehabilitation of the offender but also the best interest of the society and the community where the
convict would be staying, if he would be released on probation. To allow him loose may bring about a lack of respect of the members
of the community to the enforcement of penal law. In such a case, the court even if the crime is probationable may still deny the
benefit of probation. Consider not only the probationable crime, but also the probationable penalty. If it were the nonprobationable
crime, then regardless of the penalty, the convict cannot avail of probation. Generally, the penalty which is not probationable is any
penalty exceeding six years of imprisonment. Offenses which are not probationable are those against natural security, those against
public order and those with reference to subversion.

Persons who have been granted of the benefit of probation cannot avail thereof for the second time. Probation is only available once
and this may be availed only where the convict starts serving sentence and provided he has not perfected an appeal. If the convict
perfected an appeal, he forfeits his right to apply for probation. As far as offenders who are under preventive imprisonment, that
because a crime committed is not bailable or the crime committed, although bailable, they cannot afford to put up a bail, upon
promulgation of the sentence, naturally he goes back to detention, that does not mean that they already start serving the sentence
even after promulgation of the sentence, sentence will only become final and executory after the lapse of the 15-day period, unless
the convict has waived expressly his right to appeal or otherwise, he has partly started serving sentence and in that case, the penalty
will already be final and exeuctory, no right to probation can be applied for.

(i) Grant of probation, manner and conditions

Probation shall be denied if the court finds:

(1) That the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution;
(2) That there is undue risk that during the period of probation the offender will commit another crime; or
(3) Probation will depreciate the seriousness of the crime.

The probation law imposes two kinds of conditions:

(1) Mandatory conditions; and
(2) Discretionary conditions.

Mandatory conditions:
(1) The convict must report to the Probation Officer (PO) designated in the court order approving his application for Probation
within 72 hours from receipt of Notice of such order approving his application; and
(2) The convict, as a probationer, must report to the PO at least once a month during the period of probation unless sooner required
by the PO.
These conditions being mandatory, the moment any of these is violate, the probation is cancelled.

Discretionary conditions:
The trial court which approved the application for probation may impose any condition which may be constructive to the correction
of the offender, provided the same would not violate the constitutional rights of the offender and subject to this two restrictions: (1)
the conditions imposed should not be unduly restrictive of the probationer; and (2) such condition should not be incompatible with
the freedom of conscience of the probationer
6. Modification and extinction of criminal liability

Criminal liability is totally extinguished as follows:

(1) By the death of the convict as to personal penalties; and as to pecuniary penalties, liability therefore is extinguished only when
the death of the offender occurs before final judgment
(2) By service of sentence;
(3) By amnesty which completely extinguished the penalty and all its effects;
(4) By absolute pardon;
(5) By prescription of the crime;
(6) By prescription of the penalty;
(7) By the marriage of the offended women as in the crimes of rape, abduction, seduction and acts of lasciviousness.

Criminal liability is partially extinguished as follows:

(1) By conditional pardon;
(2) By commutation of sentence;
(3) For good conduct, allowances which the culprit may earn while he is serving sentence;
(4) Parole; and
(5) Probation.

Total extinction of criminal liability

Among the grounds for total extinction as well as those for partial extinction, you cannot find among
them the election to public office. In one case, a public official was charged before the Sandiganbayan
for violation of Anti-Graft and Corrupt Practices Act. During the ensuing election, he was nevertheless
re-elected by the constituents, one of the defenses raised was that of condonation of the crime by his
constituents, that his constituents have pardoned him. The Supreme Court ruled that the re-election to
public office is not one of the grounds by which criminal liability is extinguished. This is only true to
administrative cases but not criminal cases.

a) Prescription of crime and Prescription of penalties

Prescription of the crime begins, as a general rule on the day the crime was committed, unless the crime was concealed, not public, in
which case, the prescription thereof would only commence from the time the offended party or the government learns of the
commission of the crime. “Commission of the crime is public” -- This does not mean alone that the crime was within public knowledge
or committed in public. offender may not have filed a motion to quash on this ground the trial court, but after conviction and
during the appeal he learned that at the time the case was filed, the crime has already prescribed, such accused can raise the question
of prescription even for the first time on appeal, and the appellate court shall have no jurisdiction to continue, if legally, the crime
has indeed prescribed.
The prevailing rule now is, prescription of the crime is not waivable, the earlier jurisprudence to the contrary had already been
abrogated or overruled. Moreover, for purposes of prescription, the period for filing a complaint or information may not be extended
at all, even though the last day such prescriptive period falls on a holiday or a Sunday. For instance, light felony prescribes in 60
days or two months. If the 60th day falls on a Sunday, the filing of the complaint on the succeeding Monday is already fatal to the
prosecution of the crime because the crime has already prescribed. The rules on Criminal Procedure for purposes of prescription is that
the filing of the complaint even at the public prosecutor’s office suspends the running of the prescriptive period, but not the filing
with the barangay. So the earlier rulings to the contrary are already abrogated by express provision of the Revised Rules on Criminal
Procedure.

The prescription of the crime is interrupted or suspended –

(1) When a complaint is filed in a proper barangay for conciliation or mediation as required by Chapter 7, Local Government Code,
but the suspension of the prescriptive period is good only for 60 days. After which the prescription will resume to run, whether the
conciliation or mediation is terminated for not;
(2) When criminal case is filed in the prosecutor’s office, the prescription of the crime is suspended until the accused is convicted or
the proceeding is terminated for a cause not attributable to the accused

But where the crime is subject to Summary Procedure, the prescription of the crime will be suspended only when the information is
already filed with the trial court. It is not the filing of the complaint, but the filing of the information in the trial which will
suspend the prescription of the crime. On the prescription of the penalty, the period will only commence to run when the convict has
begun to serve the sentence. Actually, the penalty will prescribe from the moment the convict evades the service of the sentence. So if
an accused was convicted in the trial court, and the conviction becomes final and executory, so this fellow was arrested to serve the
sentence, on the way to the penitentiary, the vehicle carrying him collided with another vehicle and overturned, thus enabling the
prisoner to escape, no matter how long such convict has been a fugitive from justice, the penalty imposed by the trial court will never
prescribe because he has not yet commenced the service of his sentence. For the penalty to prescribe, he must be brought to
Muntinlupa, booked there, placed inside the cell and thereafter he escapes.

Whether it is prescription of crime or prescription of penalty, if the subject could leave the Philippines and go to a country with
whom the Philippines has no extradition treaty, the prescriptive period of the crime or penalty shall remain suspended whenever he is
out of the country. When the offender leaves for a country to which the Philippines has an extradition treaty, the running of the
prescriptive period will go on even if the offender leaves Philippine territory for that country. Presently the Philippines has an
extradition treaty with Taiwan, Indonesia, Canada, Australia, USA and Switzerland. So if the offender goes to any of these
countries, the prescriptive period still continues to run. In the case of the prescription of the penalty, the moment the convict commits
another crime while he is fugitive from justice, prescriptive period of the penalty shall be suspended and shall not run in the
meantime. The crime committed does not include the initial evasion of service of sentence that the convict must perform before the
penalty shall begin to prescribe, so that the initial crime of evasion of service of sentence does not suspend the prescription of penalty,
it is the commission
b) Pardon and Amnesty

The effects of amnesty as well as absolute pardon are not the same. Amnesty erases not only the conviction but also the crime itself.
So that if an offender was convicted for rebellion and he qualified for amnesty, and so he was given an amnesty, then years later he
rebelled again and convicted, is he a recidivist? No. Because the amnesty granted to him erased not only the conviction but also the
effects of the conviction itself.

Suppose, instead of amnesty, what was given was absolute pardon, then years later, the offended was again captured and charged for
rebellion, he was convicted, is he a recidivist? Yes. Pardon, although absolute does not erase the effects of conviction. Pardon only
excuses the convict from serving the sentence. There is an exception to this and that is when the pardon was granted when the convict
had already served the sentence such that there is no more service of sentence to be executed then the pardon shall be understood as
intended to erase the effects of the conviction. So if the convict has already served the sentence and in spite of that he was given a
pardon that pardon will cover the effects of the crime and therefore, if he will be subsequently convicted for a felony embracing the
same title as that crime, he cannot be considered a recidivist, because the pardon wipes out the effects of the crime. But if he was
serving sentence when he was pardoned, that pardon will not wipe out the effects of the crime, unless the language of the pardon
absolutely relieve the offender of all the effects thereof. Considering that recidivism does not prescribe, no matter how long ago was
the first conviction, he shall still be a recidivist.